First there was John Ashcroft. His policy views were disturbing enough that the citizens of Missouri voted for a corpse rather than elect him to the U.S. Senate. Nevertheless, he was appointed to the seat by the state's governor, and in his terms in the Senate, voted against every civil rights bill that came before that August body.
It was under Ashcroft as Attorney General that many of the orders that limited civil liberties were implemented, that FOIA was essentially suspended, and the USA Patriot Act was established, the law that was the springboard for many of the Bush administration's attacks on the civil liberties of Americans.
And then there was Alberto Gonzales, who, as Bush's White House Counsel, not only crafted the document that redefined the concept of torture in an attempt to make its use more palatable but also justified its use by American operatives. He also rationalized the practice of extraordinary rendition, which runs counter to every sense of what's morally right in the American sensibility.
It was Gonzales who developed the legal reasoning for the administration's secret domestic spying program and justified the program's need in the war on terror. And it was Gonzales who also justified the policy of indefinite detention of individuals suspected of having ties with terrorists, regardless of a lack of evidence as part of the administration's war on terror.
And now there is Michael Mukasey, a retired federal district court judge from Manhattan, the third of President Bush's nominees for U.S. Attorney General. After the initial Senate Judiciary Committee confirmation hearings, committee members from both sides of the aisle were wont to praise Judge Mukasey and predicted an easy confirmation. That is, until they began to dig up some information of the nominee in the midst of the hearings.
But better late than never, right? Perhaps.
The case of Osama Awadallah is of particular interest because it raises questions about Judge Mukasey's judicial temperament and his view on the controversial issue of the material-witness law. Designed primarily to detain material witnesses in criminal cases, the law was widely used following 9/11 to detain men of Arab ancestry shortly after the attack on the World Trade Center.
Awadallah, a student at San Diego State at the time, was arrested in October 2001 in California and whisked away to New York, where he appeared before Judge Mukasey. Of special note in the hearing of Awadallah are the exchanges between Mukasey and the defense attorney, revealing a harsh and sometimes callous Mukasey who seemed unconcerned with reason and summarily brushed aside Awadallah's attorney's arguments for the release of his client.
Judge Mukasey ignored those arguments and allowed the indefinite detention of Awadallah and other Arab men as material witnesses, even though there were no connections or evidence that justified their detention. Awadallah was eventually tried (five years later) and found innocent by a jury of the charges against him.
After jousting with some of the Democrats during his confirmation hearing, Mukasey made a remarkable statement regarding the limits of the powers of the president. Asked whether the president is required to obey federal laws, the nominee hedged his bet and stated that it would depend on whether "what goes outside the statute nevertheless lies within the authority of the president to defend the country."
The president has the authority and power to stand above the law? Since when? When does the president not have to obey the laws of the land?
It's disturbing that a nominee to become the nation's highest law enforcement officer sees exceptions to a basic principle that no one is above the law, even the president. If one were to read cynically into Mukasey's response, one would say that he's taking sides with the administration, which has laid unprecedented claims to executive authority and has chipped away at obstacles that have stood in the way.
But of course Mukasey is parroting exactly what the administration's position is on this most important question. After all, he's their candidate. And it's perhaps too much to expect the Democrats to block his confirmation because that would take the kind of gumption that is sadly lacking these days in the Congress.
And that's where the president does in fact trump the Congress and those pesky statutes that get in the way.
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